Does Florida Recognize Common Law Marriage?

The concept of common law marriage often needs clarification, as many people mistakenly believe that simply living together for a certain number of years automatically creates a legally recognized marital relationship. However, the recognition of common law marriage varies by state, and Florida's position on the matter is lawfully nuanced. In all types of family law matters or divorce cases, it is best to have a knowledgeable Florida divorce attorney on your side.

What is Common Law Marriage?

A common law marriage is a legally recognized union that arises when a couple lives together and presents themselves as married, even though they have not obtained a marriage license or participated in a formal ceremony. In states that recognize common law marriage, couples typically must meet specific requirements, such as:

• Living together for a certain length of time.
• Representing themselves as a married couple (e.g., filing joint taxes, referring to each other as spouses).
• Having the intent to be married.

Once established, a common law marriage is treated similarly to a traditional marriage, including rights to property division, spousal support, and inheritance.

Does Florida Allow Common Law Marriage?

Florida’s Historical Position on Common Law Marriages

Florida did recognize common law marriages prior to 1968. If a couple established a common law marriage in Florida before January 1, 1968, that marriage is still legally valid under state law. These unions are treated the same as any traditional marriage in Florida.

Florida’s Current Legal Framework

Florida abolished the creation of common law marriages with the enactment of Florida Statute § 741.211. According to this statute: "No common-law marriage entered into after January 1, 1968, shall be valid. However, nothing in this section shall affect any marriage that was validly entered into under the law applicable at the time."

This means that couples in Florida who began living together after January 1, 1968, cannot form a common law marriage, regardless of how long they have lived together or whether they consider themselves married.

Florida Recognizes Common Law Marriages Established in Other States

While Florida does not allow the creation of common-law marriages within the state, it does recognize valid common-law marriages established in states where such unions are permitted. This principle is based on the Full Faith and Credit Clause of the U.S. Constitution, which requires states to honor legal acts from other jurisdictions.

For example, if a couple establishes a common law marriage in a state where common law marriage is recognized and later moves to Florida, their marriage will be considered legally valid in Florida.

Legal Implications of Florida’s Position on Common Law Marriage

Florida’s refusal to recognize common law marriage after January 1, 1968, creates several legal and financial challenges for unmarried couples living together in the state. 

Property Rights: No Automatic Division of Assets

Unmarried couples do not have the right to equitable distribution of property acquired during the relationship. Unlike married couples who undergo divorce proceedings, where assets are divided based on fairness, unmarried partners rely on property law principles. Specifically:

• Ownership by Title: The person whose name appears on the title or deed owns the property. If only one partner's name is listed, the other partner has no legal claim, regardless of contributions made to the purchase or maintenance of the asset.
• Joint Ownership Complications: Property owned jointly may lead to disputes if the relationship ends. For example, if both names are on the title, courts may need to resolve the division of the property, which can be costly and time-consuming.

Unmarried partners can address these challenges through legal agreements, such as cohabitation agreements or written contracts defining property ownership and financial contributions.

Inheritance Rights: Risk of Being Disinherited

Under Florida law, unmarried partners have no automatic right to inherit from each other’s estate if one partner dies without a will. This can lead to devastating outcomes, especially for couples who have spent years building shared lives but did not take legal steps to protect their partner’s inheritance rights. Specifically:

• Intestate Succession Laws: Florida's intestate succession laws determine how property is distributed when someone dies without a will. These laws prioritize spouses, children, and other blood relatives, excluding unmarried partners entirely.
• Potential Family Disputes: In the absence of clear legal instructions, surviving family members may challenge an unmarried partner’s claim to the deceased partner’s assets.

To avoid these risks, unmarried couples should create wills, trusts, or other estate planning documents that clearly outline their wishes.

Health Care Decision-Making: Lack of Legal Authority

Unmarried partners are not considered legal next of kin in Florida, which means they have no automatic right to make medical decisions on behalf of an incapacitated partner. This can create significant challenges during emergencies or end-of-life situations:

• Hospital Access Issues: Hospitals and medical institutions may deny an unmarried partner access to their loved one or exclude them from critical discussions about medical care.
• Decision-Making Authority: Without a legal designation such as a healthcare surrogate, unmarried partners cannot make decisions about treatment, even if they know their partner’s wishes better than anyone else.

Creating a healthcare surrogate designation and a durable power of attorney ensures that an unmarried partner has the legal authority to act on behalf of their loved one.

Financial Support: No Right to Spousal Support or Alimony

Unlike married couples, unmarried partners cannot seek spousal support (alimony) following a breakup, no matter how long they were together or whether one partner was financially dependent on the other. This can have profound financial implications for the less economically secure partner, particularly in situations where one partner:

• Gave up career opportunities to support the other partner’s professional growth.
• Relied on the other partner’s income to maintain a certain standard of living.
• Contributed to shared assets or financial ventures without formal ownership documentation.

To mitigate this issue, partners should consider formal agreements addressing financial contributions, particularly in cases where one partner is sacrificing income or career advancement for the benefit of the relationship.

Child Custody and Support: Establishing Paternity Is Important

While Florida law treats child custody and support matters the same for married and unmarried parents, establishing paternity is a critical step for unmarried couples. Without this legal acknowledgment, fathers may lack parental rights, and mothers may struggle to secure child support. Key considerations include:

• Rights of Unmarried Fathers: Without paternity establishment, a father has no legal right to custody or visitation, regardless of his involvement in the child’s life.
• Financial Support for Children: A mother must establish paternity to enforce child support obligations. This is particularly important for ensuring the child’s economic well-being.

Paternity can be established voluntarily through an affidavit or through court proceedings if disputed.

Tax Implications: Separate Filings and Missed Benefits

Unmarried couples are required to file separate tax returns, which can lead to financial disadvantages compared to married couples who can file jointly. Key tax-related challenges include:

• Loss of Tax Deductions: Married couples may qualify for deductions or credits unavailable to unmarried individuals.
• Estate and Gift Taxes: Unmarried couples do not benefit from the unlimited marital deduction, which allows spouses to transfer assets tax-free. This can result in significant estate or gift tax liabilities.

Estate planning, including trusts, can help minimize these tax burdens.

Domestic Partnership Recognition in Florida

Some counties and municipalities in Florida offer domestic partnership registries, which may provide limited rights and benefits, such as:

• Hospital visitation rights.
• Health insurance benefits (if recognized by the employer).
• Limited authority for medical or financial decision-making.

However, domestic partnerships are not recognized at the state level and do not provide the complete legal protection of marriage.

Protecting Your Rights as an Unmarried Couple in Florida

Since Florida does not recognize common-law marriage, unmarried couples must take proactive legal steps to protect their rights and interests. Below are some key legal tools and agreements to consider:

Cohabitation Agreements

A cohabitation agreement is a legally binding contract that outlines each partner's rights and responsibilities during the relationship and in the event of a breakup. It can address issues such as:

• Division of property
• Financial support
• Debt allocation
• Dispute resolution

Estate Planning Documents

Unmarried couples can use estate planning documents to ensure their partner is provided for in the event of illness or death. These documents may include:

• Wills: Specify how assets will be distributed and name a partner as a beneficiary.
• Trusts: Create a more robust legal framework for asset distribution.
• Durable Power of Attorney: Designate a partner to make financial decisions.
• Health Care Surrogate Designation: Grant a partner the authority to make medical decisions.

Paternity Actions

Establishing paternity is vital for unmarried parents to secure legal rights and responsibilities regarding child custody, visitation, and support. Paternity can be established voluntarily or through court proceedings.

Choose Our Proven Florida Family Law and Estate Planning Attorneys

If you are facing a divorce, family law, probate, or estate planning matter in Florida, trust the compassionate and skilled team at Veliz Katz Law to provide you with personalized legal representation. With over 60 years of collective experience, we have been proudly serving individuals and families in Central Florida and surrounding areas since 1994. 

No matter how complex or challenging your legal issue may be, our dedicated attorneys will provide the thoughtful guidance and strong advocacy you need. To schedule your free consultation, call us at 407-410-4146 or contact us online.